Beyond Informed Consent: The Ethics of Informing, Anticipating, and Warning

| October 14, 2008 | 0 Comments

by Edmund Howe, MD, JD

Dr. Howe is Professor, Department of Psychiatry, Director, Programs in Medical Ethics, and Senior Scientist, Center for the Study of Traumatic Stress, Uniformed Services University of the Health Sciences, Bethesda, Maryland.

Psychiatry (Edgemont) 2008;5(10):42–47

INTRODUCTION

When performing psychotherapy, psychiatrists initially tend to withhold some information from their patients. For example, they may not tell their patients all the psychodynamics they infer may be likely. Rather, they titrate the amount of information they give to patients over time. If they did not, patients might feel overwhelmed and not return. In other contexts, however, psychiatrists should consider sharing information more fully. They should sometimes consider this even when their sharing of more information with patients may cause them greater harm.

Ethically, the reason that sharing more information with your patients may be justifiable or even mandatory is that giving patients greater information respects them as persons by increasing their autonomy. This value is generally viewed as more important than maximizing patients’ consequences by withholding information, even though, when armed with more information, patients may make choices that go against their best interests.

The sharing of information by psychiatrists and other care providers is often referred to as “transparency.”[1] In addition to enhancing patients’ autonomy, sharing information also helps further patients’ equality by “leveling the playing field” to a greater degree.

In psychiatry, there are three contexts in which sharing more information is particularly important: when psychiatrists’ decisions may oppose what patients want (e.g., hospitalizing them against their will), when psychiatrists anticipate future problems that may arise with particular patients and know how they can be prevented, and when psychiatrists can “warn” patients in advance of actions that the psychiatrists may later take against the patients.

In this article, I give several examples of ethical problems psychiatrists may encounter in each of these three areas and suggest some prime concerns psychiatrists should consider.

INFORMING PATIENTS (EVEN WHEN IT MAY HARM THEM)
Psychiatrists may hospitalize patients against their will when they are dangerous to others or to themselves. Ethically, it may be optimal for psychiatrists to share with patients the criteria for hospitalization and their underlying rationales as soon as is clinically most appropriate, thus increasing transparency. For example, when patients have paranoid delusions, psychiatrists may use the content and intensity of their delusions as one criterion for deciding whether to hospitalize them involuntarily. These delusions may suggest, for instance, that these patients pose an undue risk to others. Here, psychiatrists can share with these patients that continuing to have such paranoid delusions may be a factor they consider when deciding whether to hospitalize them involuntarily or continue to keep them hospitalized. The effect of treatment transparency may be paradoxical. On the one hand, the patients, knowing the criteria for hospitalization, might then choose to not disclose their delusions. On the other hand, sharing information with patients may increase patient trust in their psychiatrists so that the patients become more willing to disclose their delusions. Sharing information with patients may also increase patient insight as with current cognitive behavioral approaches.[2–5]

Psychiatrists who choose to share information with patients should also no doubt tell their patients that by continuing to openly report their delusions with their psychiatrists, the patients will benefit over the long run, even if it means they have to go to or remain in the hospital for the short run. As a specific example, psychiatrists can point out that they are better able to individualize the treatment of their patients[6] if they are fully aware of their patients’ delusions, and this also can help reduce the chances of patients inadvertently harming someone else. All else aside, however, sharing information with patients may be ethically “indicated” simply on the basis of respecting patient autonomy.

A similar value conflict may exist when patients are suicidal. Psychiatrists will hospitalize suicidal patients involuntarily because they are a danger to themselves. When dealing with suicidal patients, however, psychiatrists may want to consider maintaining or increasing treatment transparency by informing these patients about the criteria and underlying rationales they use for continuing to hospitalize them. Psychiatrists may tell suicidal patients that they will keep them in the hospital longer, for instance, if they continue to have thoughts of suicide or have specific plans for suicide in mind. The conflict is that this information may cause patients great harm because the patients may not share suicidal thoughts in the hope of gaining an earlier release, and as a result they may take their life. Psychiatrists, accordingly, should inform suicidal patients of this risk and also of other risks they may create for themselves over the long run if they keep suicidal thoughts to themselves. Chief among these is the likely effect the early discharge will have on their families. If suicidal patients leave the hospital prematurely, their families may be very afraid that these patients will kill themselves at any time, regardless of how these families present themselves and regardless of how they appear.

Here again, this approach with its greater transparency may have a paradoxically beneficial effect by increasing patient trust over the long run. One patient to whom I gave this information later told me that before I gave him full information on why he was being hospitalized and the criteria for remaining hospitalized he was planning on contesting his involuntary hospitalization in court. Hearing full disclosure from me, however, gave him what he called “unprecedented trust” in me. As a result, he said he decided not to contest his hospitalization and to “stay on” in the hospital until the psychiatrists thought that it was sufficiently safe for him to be discharged. As also suggested in this example, sharing this information with patients may additionally give them beneficial insight.[7–11] Again, however, whether the patient benefits in this way or in other ways or not at all, it may be that psychiatrists should share this information with their patients simply on the basis of respecting patient autonomy.

There are stronger arguments in other contexts for not disclosing more information. One example of this is a patient who, after an accident, suffers acute traumatic quadriplegia. The patient’s brain damage may make it necessary for him to be on a respirator immediately, but over time his capacity to breathe on his own may improve so that he eventually can be weaned off the respirator. The patient may remain fully competent at all times, and he may tell the psychiatrist early on in treatment that he does not want to live in this state and would rather die.[12,13] Should the psychiatrist inform him that if he decides at an earlier time that the respirator should be stopped, it is more likely that he will die, but if he waits longer before the respirator is stopped, it is more likely he will survive? Should the psychiatrist explain that if the patient survives without the respirator then the only way he will be able to die is to refuse to eat? The process of dying via starvation is very different and of course will take much longer.

If the psychiatrist informs the patient that he may be able to die more quickly by having the artificial respiration stopped sooner, this may result in the patient choosing this alternative when, without this information, he may not make this choice. If the psychiatrist does not take initiative to give the patient this information, alternatively, the patient may not make this early choice but may stay alive on the respirator longer. The longer the patient stays alive, then the more likely he may find that even in this different state, like the late Christopher Reeve, life can be meaningful and, therefore, he may want to continue to live. In a case such as this, the psychiatrist may enhance the patient’s autonomy in a different way by introducing him to other people who are quadraplegic who have found life to be meaningful. But the psychiatrist must consider that to do this too early in the treatment may pose a greater risk of demoralizing the patient.

ANTICIPATING POTENTIALLY ADVERSE EVENTS AND TRYING TO AVOID THEM

Often the only way in which psychiatrists can avoid harming patients is to anticipate how an event can harm patients and then take steps to try to avoid the event before it occurs. A paradigmatic example here is genetic testing. A child and his or her parents undergo genetic screening for medical reasons. This screening results in an incidental finding of nonpaternity. Once these results are obtained, ethically, it may be difficult to determine who should be told.[14,15] It is possible that if both parents are told, the psychiatrist can help them successfully respond to this new information, but this may not always be the case. However, if the psychiatrist anticipates the possibility of knowledge of nonpaternity, he or she can inform the parents before the genetic testing occurs that only the genetic findings relevant to the purpose for which they are being tested will be discussed or disclosed. This approach leaves unanswered, however, an even harder question: Should psychiatrists in this situation take initiative to inform the parents prior to the genetic testing that a finding of nonpaternity is possible, even though the psychiatrist will not share this information if this occurred? Or, should the psychiatrist take initiative to state this only if parents ask? Two considerations may most affect this decision: First, if the psychiatrist states that nonpaternity could be discovered only if parents ask, this could, in effect, discriminate between parents who are more knowledgeable or more assertive and those who are less knowledgeable or less assertive. This, ethically, would violate equity. Second, in this particular case, the paramount concern is for the child, who is the most vulnerable. This suggests that psychiatrists perhaps should not take the initiative to inform the parents of the possibility of nonpaternity, because if they do, parents might then want to find this out.

A second example here is when a patient who has a fatal illness shows denial. Here, if the psychiatrist simply tells the patient that the illness is fatal, this may make the denial worse. The psychiatrist’s goal, then, is to respond in the ways that will most help the patient emotionally. This may, as a secondary effect, also help the patient overcome the denial. A psychiatrist may help this patient most by exploring his or her preferences before the likely fatality of the illness becomes known. The psychiatrist may ask the patient, for instance, whether or not that patient would want the psychiatrist to tell him or her if the illness was fatal. If the patient is not sure how to answer this, the psychiatrist then could ask the patient whether he or she wants to discuss the pros and cons of having this information. Psychiatrists using this second approach would be applying some of the principles of motivational interviewing. This approach “presupposes” that most patients change only in stages and, in this case, this approach would presuppose that if patients are “in denial,” psychiatrists should respond to the stage they are in by asking if they want to discuss the pros and cons of having versus not having this information. The psychiatrist, accordingly, should not confront or even try to persuade such patients to want to have this information. Rather, they might, ideally, even “side with the patients’ desire to not know so that it becomes the patient who is the one arguing for change.”[16] Ngo-Metzger, et al., offers a superb, additional example of how care providers, early on, might best do this. They recommend that care providers suggest to these patients that they hope for the best while still anticipating the possibility of the worst. The authors suggest this may enable patients to better accept their worst-case scenario, while at the same time leaving them hope.[17]

This same kind of approach may be optimal also for families of patients in denial, again, before the patient’s prognosis is known. Psychiatrists can ask families, “Are there things you would want to say…just in case?” A mental health worker who asks families this question reports that after patients die, the families are grateful because they make “allowance in their calculations for their loved one’s demise….”[18] Patients may in some cultures wish to defer this information to their families.[19] In most other contexts, however, patients and their families may benefit optimally by being able to share with each other what they have meant to each other at the patient’s end of life. Here, again, as with genetic screening, psychiatrists may be able to respond most effectively to patients’ and their families’ needs only if they can anticipate these needs before the patient’s prognosis is established. Before this occurs, psychiatrists can ask patients and families what they would want if the patient’s illness is fatal. If the psychiatrist already knows that the prognosis is fatal, however, he or she may then have to implicitly lie. The psychiatrist also may harm the patient by “letting the cat [that the patient has a fatal illness] out of the bag.”

A final example involves e-mails. It may be helpful for psychiatrists to communicate with their patients by e-mails. E-mail communication may, for example, be very convenient for patients when they need to refill prescriptions. There are, however, several risks to communicating with patients via e-mail.[20–22] One risk is that patients may send messages to their psychiatrists saying they feel suicidal. They may unconsciously hope that their psychiatrists will read and respond before they decide to end their lives. Psychiatrists may be able to reduce this risk by simply anticipating it. Whenever any patient asks to e-mail the psychiatrist, the psychiatrist should be very specific on what types of e-mails are acceptable and why. The psychiatrist may anticipate, however, that a particular patient might e-mail him or her messages that express suicidal thoughts, and unless the psychiatrist is checking his or her e-mail every moment of every day, the e-mail option for this particular patient is probably not appropriate. The real “why,” which is explained to the patient, would include the psychiatrist’s own feelings. In this case, the psychiatrist would explain to the patient his or her own fear of not getting a suicidal message in time to help the patient.

WARNING PATIENTS
In some situations, psychiatrists may respect patients optimally by warning them (in advance) that they (the psychiatrists) may later act against patient interests. This ethical duty is exemplified best, perhaps, in forensic evaluations. Here, psychiatrists routinely inform those they evaluate that they are not primarily serving their interests.[23] Forensic psychiatrists must be particularly careful in this regard not to use their psychiatric skills of enhancing patients’ bonding by showing too much empathy.[24] If they do, this could exploit the patients’ emotional vulnerability to serve others’ interests. As experts in this field say, “… even the legitimate use of empathy can lead to a quasitherapeutic interaction that ultimately leaves the evaluatee feeling betrayed by the evaluator’s report.”[25]

This consideration may apply whenever a psychiatrist may serve others’ interests. It is morally obligatory, then, for psychiatrists to try to discern for themselves whenever this may be the case.

I recall being asked to consult for primarily clinical and teaching purposes in a case with a patient who was giving her young daughter many herbs. The psychiatrists who consulted with me wanted me to help them determine both how to help this mother maximally and whether or not she posed a danger to her child. I could and should have warned this patient of my second, quasiforensic purpose here, but I did not. I did not warn her, perhaps, because I feared that I would be letting the other psychiatrists down. If I warned her, she might have chosen not to say anything, which may have been a reasonable response on her part, as my interviewing her could have resulted in her losing the custody of her child. This price would be as dear as any one could imagine. I should have warned and informed her that in my view her being open and honest would be best for both her and her child. It fortunately turned out that her use of herbs was not so improper that the other psychiatrists or I felt we had to report it. She subsequently has done well herself.

As another more “generic” example, I was consulted once to see a patient who had told her psychiatrist the date on which she planned to end her life. She would not tell him how or what time she would do it. He could have hospitalized her involuntarily, but he feared that this would only make her worse. She had been hospitalized for suicide attempts many times, and now she said that if he hospitalized her again, she would “definitely” kill herself once released. I told her that I, along with her psychiatrist, would follow her case, but that I could not promise that I would not do all I could to try to hospitalize her if she continued to have this plan. I valued her life, I told her, and I had hope that she would come to value and enjoy her life in a way that she could not envision at this time.

“I don’t think I could ever see you in the morning and then say good bye,” I said, “knowing that this is the day on which you said you’d kill yourself. Therefore I cannot tell you what I might do or when.”

This, like telling a patient with paranoid delusions or suicidal wishes the criteria I would use to continue to hospitalize them, posed a most serious risk. Instead of continuing to divulge the day on which she planned to end her life, she might have clammed up. She might then have decided to say nothing or lie and then might have carried through her plan as she intended. However, my warning to her hopefully conveyed to her that she was too important, not only to me but perhaps to others, to just let her die. This may have ultimately increased her trust. Ultimately, she did not end her life and has thrived. This example epitomizes again the possibility that even if this patient had not benefited, giving her this warning may still have been ethically right, though the price of this could have been her ending her life.

CONCLUSION

I have suggested here that psychiatrists should consider respecting patients by informing, anticipating, and warning them, even when this may harm them. In forensic psychiatry, there is a hypothetical image that psychiatrists use when trying to determine whether a person who committed a criminal act had at that time an irresistible impulse. They ask themselves whether this person at this time would have committed this same crime if he or she had had a police officer at his or her elbow.[26] Likewise, psychiatrists, when deciding whether or not to be more transparent to their patients, might ask what patients would do if they had the same psychiatric and legal knowledge as their psychiatrists. As any psychiatrist who has treated other psychiatrists or lawyers knows, treating others who have knowledge comparable to his or her own (like other psychiatrists and lawyers) can result in changing his or her practices with these patients. That is, when psychiatric patients have the same knowledge that their psychiatrists have regarding such facts as the criteria the psychiatirsts will use for involuntary commitment or the possiblilty that genetic testing will show nonpaternity, psychiatrists will not be tempted to hope that their patients’ not knowing these facts may contribute to an optimal result. Rather, psychiatrists, in these instances, have no choice but to depend entirely on other factors for achieving an optimal clinical outcome, such as their patients gaining greater insight and/or gaining greater trust in the psychiatrists.

This way of practicing may, however, be best for treating all other patients as well. The patient/physician relationship that occurs when a psychiatrist is treating another psychiatrist or lawyer may be for this very reason not only unique but exceptionally gratifying and instructive. I believe this is because there is greater transparency in these patient/psychiatrist relationships, which makes the playing field more equal. This value may be something for which to strive when treating your nonpsychiatrist/nonlawyer patients too.

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